Pro football's pre-game head game

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As the Saints and Colts gear up for Sunday’s Super Bowl, the National Football League’s team owners and players are laying the groundwork in Washington for their own clash over a new labor contract.

Updated at 5:15 PM CDT on Tuesday, Feb 2, 2010

As the Saints and Colts gear up for Sunday’s Super Bowl, the National Football League’s team owners and players are laying the groundwork in Washington for their own clash over a new labor contract.

Both sides have employed well-connected lobbyists and are spending record amounts. The league’s advocacy bills peaked last year at $1.3 million, while the NFL players union spent $200,000 — double what it spent in 2008 — on hired guns.

The owners are making their first-ever political donations via the Gridiron PAC, a political action committee created just two years ago. Meanwhile, the players are roaming Capitol Hill and warning star-struck lawmakers of a potential lockout.

Of course, the negotiations aren’t anywhere close to such a dramatic moment. If an agreement isn’t reached by March 1, the league would enter next season without salary restrictions, but any strike or lockout wouldn’t come until after that, if at all.

So what’s really happening in Washington? Call it pre-game head games, with the players union angling to bring Congress onto its team and the owners hoping to keep it on the sidelines.

“I would say it’s part Kabuki dance, but sometimes the Kabuki dance can have an impact,” said Steve Ross, a sports law professor at the University of Pennsylvania.

George Atallah, a spokesman for the players union, said it is upping the pressure because “we’d like to get a deal done before the uncapped year, when we would have to go into the great unknown and then have to put Humpty Dumpty back together again.”

Atallah said the players are up against “a Goliath,” given that the owners have been lobbying Capitol Hill for years. “There are two things Congress grants the NFL — nonprofit status and antitrust exemptions,” he said. “What we are saying is that Congress has a responsibility to oversee an entity for which it grants pretty significant” benefits.

The House Judiciary Committee appears to be the union’s favorite venue, which should be no surprise given where the union’s top strategists came from.

DeMaurice Smith, a former Patton Boggs attorney, was hired last March to serve as the union’s executive director after he vowed to get a congressional review of the league’s limited antitrust exemption if it doesn’t negotiate in good faith.

His chief outside lobbyists are Patton Boggs’s Jonathan Yarowsky and Kristen Wells, both of whom are former attorneys on the House Judiciary Committee.

In the past year, the committee has held three hearings — including one Monday in Texas — on the health issues to players caused by repeated head injuries suffered in games and at practices. It’s a serious issue that lawmakers undoubtedly are serious about. But when some committee members began threatening the antitrust status of the league during those hearings, it prompted the owners to wonder about the committee’s real message.

Their suspicions were further aroused when Judiciary’s Courts and Competition Policy Subcommittee held a hearing on American Needle v. NFL, a case filed after the NFL dropped American Needle as a clothing manufacturer and signed an exclusive deal with Reebok.

American Needle argues that the NFL violated antitrust laws by signing one contract for all 32 professional football teams and that each team should negotiate its own merchandise contracts. The league argues that it is one entity and needs only one contract.

The committee hearing was held while the Supreme Court was hearing arguments in the case and the players were on Capitol Hill for their second day of lobbying. The union is concerned that a broad ruling in favor of the NFL would pave the way for the league to rein in gains made through the free-agent process.

The jockeying by the two sides on Capitol Hill is reminiscent of the way things played out in the mid-’90s when labor negotiations broke down between baseball owners and players — but this time it’s more planned and coordinated.

One week into the 1994 baseball strike, then-House Judiciary Committee Chairman Jack Brooks (D-Texas) vowed to hold hearings on whether that sport’s antitrust protection should be repealed. His general counsel then was Yarowsky, who is the football players’ lobbyist today.

But baseball owners, relying on their allies in Congress, never took such threats seriously, and both sides resisted appeals from President Bill Clinton to get back to the game. The strike that began in August stretched to March, creating a new legal issue when the owners voted to use replacement players for the 1995 season.

The baseball standoff finally ended when a federal judge, Sonia Sotomayor — who is now pondering the American Needle antitrust arguments as a justice on the Supreme Court — issued a preliminary injunction against the owners two days before the season’s Opening Day.

Ross hopes that football’s labor dispute doesn’t mushroom into a congressional issue, because he has little faith that Washington can resolve it, either.

Football owners are just as likely as their baseball counterparts to ignore congressional threats to their antitrust status. After all, the head of the Senate antitrust subcommittee is none other than Sen. Herb Kohl (D-Wis.), owner of the National Basketball Association’s Milwaukee Bucks.

But that’s not to say that Ross wouldn’t mind seeing the league lose some of its monopoly status.

“I wish some Gucci Gulch lobbyist from K Street was out there doling out PAC money on behalf of an NFL fans association,” he said, “which would not tolerate the $10 increase in NFL hats that coincided with the Reebok contract.”

The committee hearing was held while the Supreme Court was hearing arguments in the case and the players were on Capitol Hill for their second day of lobbying. The union is concerned that a broad ruling in favor of the NFL would pave the way for the league to rein in gains made through the free-agent process.

The jockeying by the two sides on Capitol Hill is reminiscent of the way things played out in the mid-’90s when labor negotiations broke down between baseball owners and players — but this time it’s more planned and coordinated.

One week into the 1994 baseball strike, then-House Judiciary Committee Chairman Jack Brooks (D-Texas) vowed to hold hearings on whether that sport’s antitrust protection should be repealed. His general counsel then was Yarowsky, who is the football players’ lobbyist today.

But baseball owners, relying on their allies in Congress, never took such threats seriously, and both sides resisted appeals from President Bill Clinton to get back to the game. The strike that began in August stretched to March, creating a new legal issue when the owners voted to use replacement players for the 1995 season.

The baseball standoff finally ended when a federal judge, Sonia Sotomayor — who is now pondering the American Needle antitrust arguments as a justice on the Supreme Court — issued a preliminary injunction against the owners two days before the season’s Opening Day.

Ross hopes that football’s labor dispute doesn’t mushroom into a congressional issue, because he has little faith that Washington can resolve it, either.

Football owners are just as likely as their baseball counterparts to ignore congressional threats to their antitrust status. After all, the head of the Senate antitrust subcommittee is none other than Sen. Herb Kohl (D-Wis.), owner of the National Basketball Association’s Milwaukee Bucks.

But that’s not to say that Ross wouldn’t mind seeing the league lose some of its monopoly status.

“I wish some Gucci Gulch lobbyist from K Street was out there doling out PAC money on behalf of an NFL fans association,” he said, “which would not tolerate the $10 increase in NFL hats that coincided with the Reebok contract.”